‎Brazil News

 

Insurance company will not pay for claims of customers who have been in default for 3 years

The panel understood that insurance compensation is not due when the insured remains in default for a long period, even without prior notification from the insurer.

From the Editors

 

Thursday, January 16, 2025

 

Updated at 10:38

 

To share

 

The 3rd panel of the STJ decided that the lack of prior communication from the insurer regarding the termination of the contract does not guarantee the payment of insurance compensation if the insured is in default for a prolonged period before the occurrence of the loss.

 

In a case analyzed by the STJ, a five-year insurance policy, taken out in 2016, had only eight of the 58 installments paid by the insured. The loss occurred in 2019, and the insured requested compensation.

 

The insurer denied payment due to failure to pay the installments, leading the insured to file a collection action. The action was initially dismissed, but the appellate court overturned the ruling, claiming that the insurer had not provided prior notice to the insured about the delay in payment.

 

In the special appeal to the STJ, the insurer argued that compensation was not due due to the long period of default by the insured. The rapporteur, Justice Nancy Andrighi, cited art. 763 of the Civil Code , which determines that the defaulting insured is not entitled to compensation if the loss occurs before the debt is regularized.

 

However, the minister recalled that the 2nd section of the STJ adopted the understanding that, in order to configure the default provided for in the legal provision, prior notification of the insured is necessary, according to Summary 616 of the STJ.  The logic of the understanding is to avoid the exaggerated disadvantage for the unpunctual insured, in a conciliatory and reasonable manner , stated the minister.

 

Insurance company will not have to cover the loss of a customer who has been in default for 3 years. 

The rapporteur highlighted, however, that the STJ has exceptionally ruled out the application of the summary when the insured is in default for a long period and the insurer is unable to communicate the unilateral termination of the contract.

 

The minister clarified that there is no exact period of default to set aside the summary, and that it is necessary to analyze the context of each case. In addition to the period of default, the start of the contract's validity, the percentage of the obligation fulfilled and the personal conditions of the insured, among other aspects, must be considered.

 

When granting the insurer's appeal, the minister highlighted the substantial default of the contract, with the insured paying only the first eight months and remaining in default for 23 months until the loss.

 

The minister considered that the insured, being a legal entity, has the technical knowledge to deal with contractual obligations. Even without formal communication about the default, allowing the payment of the premium under these circumstances, according to the rapporteur, would disregard the duties of good faith required in contractual compliance.

 

 In compliance with the principle of good faith, it is unacceptable that Summary 616, which seeks to protect the consumer from excessive burden when there is a mere delay in payment, be used for spurious purposes, deviating from its real purpose of protecting the consumer, in addition to compromising the contractual balance and trust between the parties , concluded the minister.

 

Case : REsp 2.160.515

 

 link: https://www.migalhas.com.br/quentes/423042/seguradora-nao-pagara-por-sinistro-de-cliente-inadimplente-ha-3-anos